Delhi High Court
J.L. Gugnani vs M/S Krishna Estate & Ors. on 21 July, 2011
Author: Gita Mittal
Bench: Gita Mittal
IN THE HIGH COURT OF DELHI
IA No. 12009/2002 & IA No.12012/2002 in CS(OS)
No.2110/2002
Date of decision: July 21, 2011
J.L. GUGNANI. ... Plaintiff
through: Mr. Anil Kher, Sr. Adv.with Mr.
Ankur Bansal and Mr. D.R. Bhatia, Advs.
VERSUS
M/S. KRISHNA ESTATE & ORS. .... Defendants
through: Ms. Mukta Sharma, Adv.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
1. Whether reporters of local papers may be
allowed to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
GITA MITTAL, J
1. I hereby propose to decide IA No.12012/2002 filed by the
plaintiff seeking condonation of delay in refiling the suit returned
by the registry with office objections after its initial presentation.
At first blush, this application gives an impression that it is an
innocuous application and the prayer made therein deserves to
be granted. However, the vehemence of the opposition and a
little deeper probe brings certain important issues which bear
consideration, to the fore.
2. The plaintiff/applicant brought a suit for specific
performance of an agreement dated 6th June, 1996 executed
between the parties to sell and purchase land admeasuring 110
bighas situated in Village Wizarbad in District Gurgaon, Haryana.
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 1 of 32
The plaintiff has claimed that out of the total consideration of
Rs.1,40,000/- it had paid an amount of Rs.1 crore vide cheques
which were replaced by four pay orders, each for the sum of
Rs.25 lakhs. The plaintiff contends that the defendant was
unable to transfer the said land for the reason that it was not able
to obtain title in its favour from the owners of the village. The
defendants also refused to return the amount of Rs.1 crore
received as earnest money with interest necessitating the suit.
It may be noted here that the defendant strongly contests
the above assertions and has even filed a defence to the same.
3. The plaint dated 10th June, 2002 seeks the following
prayers:-
"a) pass a decree for specific performance of the
agreement to sell dated 06.10.1996 against the
defendants and the said defendants be directed to
transfer and convey the right, title, interest and
possession of the property being land measuring 16
bighas 18 biswas comprised in Mustil No. 182, Killa
No. 12/1 [3-6], 19/2 [3-6], 21/2 [1-14], 22/1 [3-4]
and Mustil No. 181, Killa No. 7/2 [0-16], 24 [4-12]
situated at Villae Dera Mandi, Tehsil Kauz Khas, New
Delhi;
b) direct the defendants to produce the original title
deeds of the property being land measuring 16
bighas 18 biswas comprised in Mustil No. 182, Killa
No. 12/1 [3-6], 19/2 [3-6], 21/2 [1-14], 22/1 [3-4]
and Mustil No. 181, Killa No. 7/2 [0-16], 24 [4-12]
situated at Villae Dera Mandi, Tehsil Kauz Khas, New
Delhi;
or in the alternative, direct the defendants to pay
a sum of Rs.1,40,00,000/- to the plaintiffs;
c) direct the defendants to pay interest @ 18% per
annum from 10.06.1999 till the actual payment is
made to the plaintiffs;
d) direct the defendants to pay costs of the suit;"
4. The plaint was signed and verified on 10th June, 2002. The
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 2 of 32
accompanying affidavit of Sh. J.L. Gugnani (the plaintiff) was
sworn on 6th June, 2002. The plaint was presented in the
Registry on 6th of July, 2002.
5. In para 14 of the plaint, it was stated that the value of the
subject matter of the suit for the purposes of court fee and
jurisdiction is Rs.1.40 lakhs and accordingly court fee is appended
thereon.
6. Apart from the signatures and verification by the plaintiff,
the plaint was signed by learned counsel as well.
7. Alongwith the suit, the plaintiff filed two applications being
IA No. 12009/2002 under Order 39 Rule 1 & 2 of the CPC seeking
interim injunction, as well as IA No. 12010/2002 under Section
149 of the CPC praying for exemption from filing the court fee.
8. The suit was returned by the Registry of this court to the
plaintiff on the 6th of July, 2002 with office objections. Thereafter,
the suit came to be refiled only on 19th December, 2002. Apart
from the two previously filed applications, this time the plaintiff
also filed IA No. 12012/2002 (the application under consideration)
under "the High Court Rules read with Section 151 of the Code of
Civil Procedure" praying for condonation of the delay in refiling.
This application is under consideration.
9. The result of this application rests on the answer to two
questions, the first being whether the plaintiff has explained the
delay in removing the defects and refiling of the suit by reasons
and circumstances which are bonafide and reliable, entitling him
to the condonation thereof. The second question which has
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 3 of 32
arisen is as to whether the failure on the part of the plaintiff to
make good the deficiency in the court fee within the time granted
by the court; or to explain the same or to seek condonation by
making an appropriate application, would disentitle him to
exclusion of the period for the purposes of limitation.
10. So far as the first question is concerned, learned counsel for
the defendant has vehemently opposed the condonation of delay
in refiling the suit, urging that the delay in the instant case is not
bonafide or by oversight but is purely on account of the
deliberate malafide acts and deeds of the plaintiff.
11. The application seeking condonation of delay in refiling the
suit is opposed on the ground that the plaintiff has failed to
explain the delay in refiling. The explanation propounded is
challenged on the ground that it is vague, false, negligent and
malafide. In this regard, reliance has been placed on the
pronouncement of this court reported at AIR 1987 Delhi 90
Smt. Parvati & Ors. vs. Sh. Anand Parkash and 38 (1989)
DLT 10 S.V. Khadekar vs. Shri Ram Scientific Inds.
Research.
12. Before examining these judicial precedents, reference may
be made to the rule position so far as scrutiny by the Registry of
papers which are filed is concerned.
13. The Delhi High Court Rules relating to the original side
framed in exercise of power conferred under section 122 and 129
of the Code of Civil Procedure, 1908 and Section 7 of the Delhi
High Court Act, 1967 came into force in 1967.
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 4 of 32
These rules were amended with effect from 1st December,
1988.
14. So far as scrutiny, return and refiling of the plaint, petition,
application or proceeding of the matters on the original side is
concerned, the same is governed by Rule 2 of Chapter 4 of the
Delhi High Court Original Side Rules which reads as follows :-
"Rule-2 Endorsement and scrutiny of documents.
"(a) The officer in-charge of the filing-counter shall
endorse the date of receipt on the plaint, petition,
application or proceedings and also on the duplicate
copy of the index and return the same to the party. He
shall enter the particulars of all such documents in the
register of daily filing and thereafter cause it to be sent
to the office concerned for examination. If on scrutiny,
the document is found to be defective, such document
shall, after notice to the party filing the same, be placed
before the Registrar. The Registrar may for sufficient
cause return the said document for rectification or
amendment to the party filing the same, and for this
purpose may allow to the party concerned such
reasonable time as he may consider necessary.
(b) Where the party fails to take any step for the removal
of the defect within the time fixed for the same, the
Registrar may, for reasons to be recorded in writing,
decline to register the document.
(c) Any party aggrieved by any order made by the
Registrar under this rule may, within fifteen days of the
making of such order, appeal against it to the Judge in
Chambers."
(underlining supplied)
15. Rule 5 in Chapter I Part A(a) of Volume V of the Delhi High
Court Rules and Orders dealing with judicial business including
the presentation and reception of appeals, petitions and
applications for review and revision was substituted to read as
under :-
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 5 of 32
"Rule 5(1) The deputy Registrar/Assistant Registrar, In-
charge of the Filing Counter, may specifiy the objections
(a copy of which will be kept for the Court Record) and
return for amendment and re-filing within a time not
exceeding 7 days at a time and 30 days in aggregate to
be fixed by him, any memorandum of appeal, for the
reason specified in Order XLI, Rule 3, Civil Procedure
Code.
Rule 5(2) If the memorandum of appeal is not taken
back, for amendment within the time allowed by the
Deputy Registrar/Assistant Registrar, in charge of the
Filing Counter under sub-rule (1), it shall be registered
and listed before the Court for its dismissal for non-
prosecution.
Rule 5(3) If the memorandum of appeal is filed beyond
the time allowed by the Deputy Registrar/Assistant
Registrar, in charge of the Filing Counter, under sub-rule
(1) it shall be considered as fresh institution.
Explanation: The period of seven days or thirty days
mentioned above shall commence from the date, the
objections are put on the notice board.
Note: The provisions contained in Rule 5(1), 5(2) and
5(3) shall mutatis mutandis apply to all matters, whether
Civil or Criminal."
16. It would appear from a reading of the rules that there is a
clear distinction between the rules for refiling on the original side
and the rules in appellate and other jurisdictions. A plaint is
presented at the filing counter whereupon the date of
presentation is endorsed by the Registry. If upon examination,
the papers which are presented are found defective, the same
after notice to the parties, are placed before the Registrar. The
Registry may cause return of the documents for rectification or
amendment to the party which filed the same and also allow such
reasonable time for this purpose as may be considered
necessary. In terms of rule 2(b) of Chapter 4 of the Original Side
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 6 of 32
Rules, upon delay in refiling or re-presentation on the original
side, the Registrar may decline registration of the document. In
such eventuality, an appeal would lie against the order.
In other jurisdictions, in terms of Rule 5(3) of Chapter I of
Volume V of the Rules, such re-presentation is to be treated as a
fresh institution.
17. In AIR 1987 Delhi 90 Smt. Parvati & Ors. vs. Sh.
Anand Parkash on the issue of refiling, the court observed as
follows :-
"20. The appellant in the said case had taken 85
days to refile the appeal after removing the defects
pointed out by the Registry. The position in the
instant case is still worse as the appellants took
nearly nine months in refiling the appeal and no
explanation for this inordinate delay except the
vague averment that the file was misplaced is
forthcoming. Indeed, the learned counsel for the
appellants did not try to justify the delay in re-
presenting the appeal and his main plank was that
the original order of the Deputy Registrar in
returning the appeal was not warranted by law.
xxx
22. The upshot of the whole discussion, therefore, is
that there is absolutely no reason for condoning the
delay in refiling this appeal. It is accordingly
dismissed."
18. The observations of this court in the judgment reported at
38 (1989) DLT 10 S.V. Khadekar vs. Shri Ram Scientific
Inds. Research may usefully be extracted and read as follows :-
"3. I do not agree with any of his submission. The
fact remains that the objections pointed by the
Registry were not only formal but substantive in
nature. One of the objections was that the certified
copy of the lower court was not duly stamped. Rule
13 of Chapter I (High Court Rules & Orders), Vol. V
specifically lays down that the improperly stamped
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 7 of 32
documents remain invalid unless filed through
mistake and time extended for making up the
deficiency. In this case, no such application was
moved nor any order from the court was sought.
4. Learned counsel for the respondent has relied
upon the Judgment of this Court Smt. Parvati & Ors. v. Shri Anand Parkash Air 1987 Delhi 91', wherein there was 8 months' delay in refiling the appeal. The sum and substance of that Judgment reads as under;
"S. 5 of the Limitation Act would not be attracted to a case where an appeal/objection has been initially filed within the prescribed period of limitation and the same does not suffer from any infirmity of a vital nature but there is delay in refiling the appeal after removing the defects as pointed out by the Deputy Registrar. The rigours of law of limitation regarding condonation of delay would not apply to such a situation and the court has simply to satisfy itself that there is a plausible explanation for the delay. But it cannot be said 'that there is no sanction behind R. 5(1) of Punjab High Court Rules and Orders and the Court will be powerless to reject the memorandum of appeal or impose any other appropriate penalty if the appellant behaves in a totally negligent, reckless or erratic manner in not refiling the appeal after removing the defects within a reasonable time. Thus where the appellants took nearly nine months in refiling the appeal and no explanation for this inordinate delay except a vague averment that the file was misplaced was forthcoming the appeal was liable to be rejected".
(Emphasis supplied)
19. It is noteworthy that these two judicial pronouncements were rendered in appellate jurisdiction. However, an important distinction has been drawn in these pronouncements between defects of substantial nature and defects otherwise. It was clarified that if the appeal/objection as was initially filed within the prescribed period of limitation, did not suffer from any infirmity of a vital nature but there was delay in re-filing the appeal after removal of the defects, the rigors of the law of IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 8 of 32 limitation regarding condonation of the delay would not apply and the court would simply satisfy itself that there was an explanation for the delay. In such an eventuality, it was held that appeal having been filed within limitation and the Registry pointing only a formal defects in its presentation, refiling of the appeal cannot entail dismissal as time barred if the compliance had been made within the period assigned for the purpose. It was further held that in case of a delay, and the defects which were pointed out being only formal, the court would only consider whether there was bona fide explanation for the delay.
20. A distinction was drawn between presentation of the plaint and the admission of a plaint in AIR 1986 Bombay 353 Union Bank of India Vs. M/s Sunpack Corporation wherein the court held as follows:-
"After the presentation the plaint is scrutinized. If there are any defects in the same, the plaintiff is required to remove them. The removal of defects is a matter of procedure. It is only after the defects are removed that it becomes eligible for any entry and a number in the register of suits. So long therefore as the plaint is not admitted and entered in the register of suits all defects including that of the absence of leave under the said clause can be removed without returning the plaint. There is no question of returning the plaint which is not admitted. It simply remains under objection till it is admitted."
21. A similar objection that the suit was barred by limitation on account of the failure of the plaintiff to remove the defects pointed out by the Registry within the time granted and its re- filing after the expiry of the period of limitation arose for consideration before this court in the judgment reported at ILR IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 9 of 32 (1995) II Delhi 60 Shri Ashok Kumar Parmar Vs. D.C. Sankhla. In this judgment, in para 10, it was held as follows:-
"10. Looking to the language of the Rules framed by Delhi High Court, it appears that the emphasis is on the nature of defects found in the plaint. If the defects are of such character as would render a plaint, a no-plaint in the eye of law, then the date of presentation would be the date of refiling after removal of defects. If the defects are formal or ancillary in nature not effecting the validity of the plaint, the date of presentation would be the date of original presentation for the purpose of calculating the limitation for filing the suit."
22. An application of the above principles would show that it may also require to be examined as to whether the defects which were pointed out by the Registry were formal or otherwise; whether the defects have been removed within the period fixed; and, if not, whether there is a bonafide explanation for the delay.
23. In 1998 (V) AD (Delhi) 634 S.R. Kulkarni Vs. B. Birla VXL Limited the principles have been laid down in para 8 & 9. It has been held that the question of condonation of delay in refiling of an application has to be considered from a different angle and viewpoint as compared to consideration of condonation of delay in initial filing. The court reiterated the above principle that delay in refiling is not subject to the rigorous tests which are usually applied in excusing the delay in a petition filed for condonation under section 5 of the Limitation Act. The case related to condonation of delay in refiling an application for leave to defend in a summary suit. This application was rejected as belated by the learned Single Judge. The Division Bench observed that the IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 10 of 32 appellant had been casual in his approach. However, there was no mala fide intention on the part of the appellant to delay the proceedings. On the facts of the case, the court took the view that ends of justice would be met if the delay in refiling the application for leave to defend is condoned on payment of costs by the appellant to the respondent.
24. In the instant case, the delay of almost six months in refiling is admitted. It has been urged by learned counsel for the defendant that even if it were to be assumed for the sake of arguments that the defects pointed out by the Registry were formal, the plaintiff has completely failed to make out a case for condonation of delay. It is, therefore necessary to examine the reasons and explanation rendered by the plaintiff for the delay in refiling in the light of the above principles.
25. It is noteworthy that after the plaint was returned with office objections in July, 2002, the suit was refiled only on 19th December, 2002. The plaintiff has stated therein that the suit was earlier filed through a counsel, namely, Mr. S.K. Sahijpal, Advocate which was received back in his office as certain objections were raised by the Registry. It was further submitted that since there were some renovation work going on in the office of the said counsel, the file pertaining to the suit got misplaced and it was only traced out some time in the middle of December, 2002 when the same was returned back to the plaintiff. In support of this application, the plaintiff has enclosed an affidavit of the clerk of Mr.S.K. Sahijpal, Advocate as well as of the court IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 11 of 32 clerk of the counsel who had filed the suit.
26. Learned counsel for the defendant has pointed out that there is no reference to Mr. S.K. Sahijpal, Advocate anywhere on the record of the case. The plaint was not signed by Mr. S.K. Sahijpal, Advocate. The accompanying index does not bear his name or signatures. Learned counsel for the defendants has vehemently urged that there was no change in the counsel between filing and refiling the suit. Mr. S.K. Sahijpal, Advocate has never put in appearance in the matter on any date of hearing at all.
27. Learned counsel for the defendant has urged at some length that the application gives no dates between which the renovation was going on; when the file was misplaced or when it was traced out, other than a vague reference to the file being traced out in the "middle of December, 2002".
28. The application and the affidavit of the clerk of Mr. S.K. Sahijpal. Advocate are both dated 3rd December, 2002. The application was obviously drafted in the beginning of December, 2002, in any case on or before 3rd December, 2002 (the date of attestation of the affidavit) and therefore, the reason given in the application that the file was traced out in the middle of 2002 is clearly without any basis. The second affidavit of the clerk of the counsel who filed the plaint, which has also been enclosed with the IA No. 12012/2002 is dated 19th December, 2002. The application fails to render any explanation for the delay between 3rd December, 2002, when the first affidavit was also attested, to IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 12 of 32 19th December, 2002, when the refiling was effected.
The plea that the file was traced out in the middle of December, 2002 is clearly incorrect and without basis.
29. For the same reason, the reliance placed by Mr. Anil Kher, learned senior counsel for the plaintiff on the pronouncement of the Supreme Court in AIR 1978 SC 335 Indian Statistical Institute vs. Associated Builders & Ors. is misplaced. No absolute proposition has been laid down by the court that an application for condonation of delay or extension of time for taking statutorily mandated steps has to be allowed in every case. The narration in this pronouncement shows that the court had concluded that the counsel for the appellant was negligent and was exerting illegal and unethical pressure upon the appellant unjustifiably for more money. As such, the appellant was completely helpless in taking steps for removing the objections and refiling the same. In this background, the court concluded that, on the facts disclosed in support of the plea for condonation of delay and for extension of time, sufficient ground was made out for condoning the delay in filing the objections and the Supreme Court took the view that the attitude of the High Court was unsympathetic. The court had specifically concluded that the delay was not due to any want of care on the part of the appellant but due to circumstances completely beyond his control.
30. It cannot be disputed that the manner in which the plaintiff has conducted the instant case is grossly negligent and there is IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 13 of 32 certainly substance in the contention of learned counsel for the plaintiff that the reasons propounded for explaining the delay inspire no confidence at all.
31. Even if it could be held that the delay in refiling was bonafide and deserved to be condoned, the defendants have raised yet another important issue. It is now necessary to consider the second objection which has also been pressed by learned counsel for the defendant. It is urged that the plaintiff did not comply with the order dated 20th December, 2002 permitting him make good the deficiency in the court fee also within the time permitted. The submission is that even if the delay in refiling is condoned, the suit against the defendants has become hopelessly barred by limitation, given the delay in making good the deficiency in the court fee as well.
32. The suit and the applications were listed before the court for the first time on 20th December, 2002. On IA No. 12010/2002 (under Section 149 of the CPC), a submission was made on behalf of the plaintiff that the deficient court fee would be deposited within two days and the court directed that the same should be deposited accordingly.
33. It is pointed out that this submission was also contrary to the averments in the application dated 6th June, 2002.
34. As per the stamp of the Registry, which is not clearly legible, the court fee has been deposited either on the 3rd or 9th January, 2003. Ms. Sharma, learned counsel for the defendants contends that the court fee was not deposited even on reopening IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 14 of 32 of the court after the winter recess on 2nd of January, 2003, and whereupon the suit is barred by limitation.
35. No explanation or prayer for condonation of the delay in compliance with the order for making good the deficiency in the court fee is made in the present proceedings.
36. Certain judicial precedents wherein the principles which would govern an application seeking condonation of delay in making good the deficiency in or payment of the court fee have been considered, may be noticed. In this regard, reference can usefully be made to the pronouncement of this court reported at AIR 1968 Delhi 183 Custodian of Evacuee Property, New Delhi vs. Rameshwar Dayal & Ors. In this case the appeal was dismissed, holding it to be barred by limitation as the order appealed against did not bear proper court fee. A revision petition had been filed instead of an appeal. The learned Single Judge referred the question to the Full Bench. The Full Bench ruled that the revision was not maintainable and an appeal had to be preferred. The revision petition pending before the Single Judge was not converted to an appeal as it was felt that the appeal was maintainable before the lower appellate court and not in the High Court. It was contended that in view of the impugned order not being affixed with the proper court fee, a valuable right had accrued in favor of the opposite successful party as an appeal preferred without requisite court fee was no appeal in the eyes of law and the same had, therefore, become barred by limitation. The appellant made an application under Section 149 IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 15 of 32 CPC to make good the deficiency in court fee. The learned additional district judge took the view that without a prayer to extend limitation, he could not permit the deficiency to be made good. He also did not consider the plea that the court fee as was originally required to be paid in 1947, had been affixed. Chief Justice I.D. Dua allowed the appeal holding that "The discretion conferred on the court by Section 149 is normally expected to be exercised in favor of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind. The question of bona fides has in this connection to be considered from the point of view of its definition as contained in the General Clauses Act and not as contained in the Limitation Act. A thing should be presumed to be done bona fide if it is done honestly, whether it is done negligently or not, for the purposes of judging whether the discretion under Section 149 should or should not be exercised in favor of the litigant."
37. On the same issue, the pronouncement of this court reported at 1975 RLR 35 Parma Nand vs. Kamla Sethi deserves to be usefully noticed. In this case, the landlady had sought eviction of tenants on various grounds but not on default of payment. The plea of fixation of standard rent raised by the tenant was, therefore, an independent application, requiring court fee of Rs.13/-. The appellant did not affix any court fee on this application. The appellant was asked to pay court fee within 10 days. He paid it on the 14th day, seeking condonation of delay by pleading that his clerk was under the impression that court fee IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 16 of 32 was required to be paid within 15 days. The Rent Controller dismissed the application holding that he had failed to act with due care and attention and sufficient cause was not made out. The Rent Control Tribunal confirmed the order. The High Court in second appeal observed as under and outlined the approach to be adopted:-
"7. It is well settled that the matter of court fees, whether of its non-payment, deficit payment or delay in payment, is not a matter between the parties but is a matter between the revenue on the one hand and the party, which had made default in the payment of court fees, on the other. It is equally well settled that the provisions of Sections 148 and 149 are much wider in their ambit and have to be liberally construed and any default or delay in the payment of court fee should ordinarily be condoned. Reference may be made in this connection to the observations of the Supreme Court in the case of Mahanth Ram Dass Vs . Ganga Das- [1961]3SCR763 and of this Court in the case of Custodian of Evacuee Property, New Delhi Vs . Rameshwar Dayal and others, : AIR1968Delhi183 . In the latter decision, it had been held that the discretion conferred on the Court by Section 149 is normally expected to be exercised in favor of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind and that the question of bona fides has to be considered from the point of view of its definition as contained in the General Clauses Act and not as contained in the Limitation Act so that a thing should be presumed to be done bona fide if it is done honestly, whether it is done negligently or not, for the purpose of judging whether discretion under Section 149 should or should not be exercised in favor of the litigant. The aforesaid decisions of this Court was based on an earlier decision of the Full Bench of the Lahore High Court in the case of Jagat Ram Vs. Misra Ram and another AIR 1938 Lahore 361, in which it had been pointed out that the discretion conferred on the Court by Section 149 was normally expected to be exercised in favor of the litigant except in cases of contumacy or positive mala fide or reasons of a similar kind and that the question of bona fies in this connection had to be considered in the sense that word is used in the General Clauses Act and not as used in the Limitation Act. The same principle would apply in the IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 17 of 32 administration of Section 148 of the Code of Civil Procedure.
8. It is thus clear that when confronted with the plea that the delay of four days in the payment of court fees should or should not condoned, the proper approach of the Courts below ought to have been to put themselves to an enquiry, if in dealing with the matter the appellant was acting bona fide, that is, honestly and without any mala fide motive or whether he was acting contumaciously, in that, it persisted in non-payment of the court fees in spite of a number of opportunities having been granted for the purpose. It was not disputed before me that the plea for condonation was at no stage resisted on the ground of mala fide. It was irrelevant, in that view of the matter, for the Courts below to embark upon an enquiry if in dealing with the matter, the appellant or his agent or his counsel or counsel's agent acted diligently or negligently. This wrong approach to the problem on the part of the Courts below has clearly vitiated both the orders and the same must, Therefore, be set aside."
(Underlining furnished)
38. A similar issue had arisen before the High Court of Kerala in the judgment reported at AIR 1994 Kerala 405 V.O. Devassy vs. Periyar Credits & Anr. In this case, the suit was based on a promissory note dated 9th March, 1984 and it had been presented on 9th March, 1987. It was returned on the same date day for representation after curing the defect, viz., insufficiency of court fee. The plaint was re-presented on 24th March, 1987 with the deficit court fee. It was contended that the suit had become barred by limitation and a valuable right had accrued to the defendant of the suit being barred by the date on which the deficit court fee was paid. The High Court of Kerala in this case considered the case law as also the effect of order permitting making up of the deficiency under Section 149 of the CPC, on the IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 18 of 32 plea of limitation. Principles governing the sound exercise of discretion were enumerated. The Court also considered the provisions of Order VII Rule 11 CPC, which enjoins upon the Court to grant opportunity or time to make up the deficiency under Rule 11(c) of Order VII CPC, before the plaint can be rejected under the said provision. The learned Single Judge has succinctly summed up the legal position on this issue as under:-
"16. The principles emerging from the aforesaid decisions can be stated thus: Section 149, CPC empowers the Court to allow any person by whom court- fee is payable to pay the whole or part, as the case may be, of such court fee. Upon such payment the documents in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance. Section 149 has to be treated as an exception to Sections 4 and 6 of the Court Fees Act, 19\870 and serves as a proviso to those sections by allowing the deficit to be made good within the time fixed by the court. But the power is subject to the discretion of the court to be exercised in accordance with judicial principles and cannot be claimed as of right. If the court has received the deficit court-fee and admitted the plaint or the court has impliedly extended the period, the payment of deficit shall take effect from the date of presentation of the plaint or appeal, as the case may be. The words "at any stage" in Sec. 149 contemplates that the deficiency can be ordered to be made good even after the period of limitation for filing appeal or the suit has expired. The discretion can be exercised even in the case of a plaint without any court- fee. When the court allows the plaintiff or the appellant time to pay deficit court-fee in exercise of its discretion, the other party cannot attack the order on the ground that it takes away his right to plead the bar of limitation; nor can he claim to have derived a vested right by the non-payment of the court-fee. Under the latter part of Sec. 149 the defective plaint or appeal memorandum is validated with retrospective effect if the deficit court-fee is subsequently made up. The power to permit the party to pay the deficit court-fee is not in any way affected by any bar of limitation. The section is general in its terms and applies to all documents chargeable with court fee under the Court-fees Act including plaints, appeal memorandum etc. IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 19 of 32
17. Under Order VII, Rule 11(c) the court is bound to grant some time to supply the deficit court-fee on a plaint insufficiently stamped. The plaint is liable to be rejected under that sub-rule only if the plaintiff has failed to supply the requisite stamp paper within the time as required by the Court. The court has therefore an obligation to require the party to make good the deficiency in the case of a plaint. The discretion conferred on the court under Sec. 149 is over and above this obligation under Rule 11 of Order 7. In the case of an appeal the discretion under S. 149 applies. The proper provision under which time may be granted or extended is Sec. 149 and not Order VII, Rule 11 which only states the circumstances in which the plaint shall be rejected. In other words, Rule 11 of Order VII is not an enabling provision, but only a disabling one."
(Underlining furnished)
39. Mr. Anil Kher, learned senior counsel for the plaintiff has placed reliance on the pronouncement of this court in 2003 (69) DRJ 369 Sushil Kr. Raut vs. Virender Bhatnagar Sansathan & Anr. This case is clearly distinguishable on facts. The court has clearly noted that even though, the re-filing was delayed and the plaintiff was negligent in not making an application for extension of time in refiling and for condonation of delay and extension of time for making good the deficit court fee, as on the date of re-filing, the suit was still within a limitation. The suit had been originally filed on 10th October, 2002 and it was concluded that the suit could be filed up to 6th December, 2002. The plaintiff had sought extension of time for making good the deficient court fee which was granted.
To explain the delay in the case of Sushil Kumar Raut (supra), the plaintiff had stated that it was his inability to arrange for the requisite funds which has resulted in the delay in IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 20 of 32 deposit of the court fee. This explanation was accepted and in para 17 of the pronouncement, the court observed as follows :-
"17. The rules of procedure fixing a stipulated period within which defects are to be removed are intended to avoid delay by litigants and to ensure promptitude. These are not intended to be punitive or to render the Court powerless upon expiry of stipulated period, to do justice when required."
40. So far as Section 149 of the CPC is concerned, the binding principles with regard thereto have been culled out in Sushil Kr. Raut (supra) as follows :-
" i) Section 149 CPC has to be interpreted and given effect to in a liberal manner; ii) the payment of deficit court fee is a matter between the State i.e. Revenue and the plaintiff; iii) the effect of allowing an application under Section 149 CPC is as if the deficit court fee stood paid on the date of initial presentation; iv) while judging whether the application under Section 149 CPC should be allowed or not the same has to be tested on the touch stone of whether the plaintiff acted bona fide as per the definition of expression in General Clauses Act and not as per the Limitation Act; v) Relief is to be denied to the plaintiff if he did not act bona fide or his conduct was contumacious. Relief is not to be denied even though he may not have been diligent or had even been negligent."
After considering the facts of the case including the circumstances in which delay had occurred, in Sushil Kumar Raut (supra) the court observed that there was no element of malafide or contumacy in the plaintiff's conduct. However, there was delay in moving the application for condonation of delay and consequently, the court extended the time for making up the deficiency in the court fee up to the date it was actually deposited.
41. In the judgment reported at AIR (39) 1952 Vindhya IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 21 of 32 Pradesh 12 Sukhnandan Prasad vs. Baburam Maheshwar Lal, the court had occasion to consider a similar objection when it was observed as follows :-
"13. The proper way of ascertaining the date of institution is to find out, whether, while tendering the plaint the plaintiff has done all that he has to do in compliance with Orders 4, 6 and 7. If he has done this, and has nothing more to dos, then the tendering of the plaint to the proper officer should be treated as institution. Any delay in office, for no laches of the plaintiff, should naturally not be put at his door. If on the other hand, there is some defect to be removed, or some deficiency in the Court-fee to be made up, then it becomes an important question whether the suit is instituted on the date of the tender, or on the date the defect is remedied by the plaintiff. When the Court grants time for the removal of the defect, and the defect is remedied, then the suit would normally be deemed to have been instituted not on the latter day but the day of the tendering itself, because the Court in its discretion has, as it were, condoned the delay. The delayed payment of the court-fee, S.149 of the Civil P.C., is an instance to the point. This condonation of the time taken to remove defects is at the discretion of the Court; but it cannot exercise it 'ex-parte' so as to deprive the defendant of any right he might have acquired in this interval under the law of limitation. At all events the other party should have the right of urging that the court's granting time for removal of defect has not affected the advantage he might have gained in the interval."
(Underlining supplied)
42. Mr. Anil Kher, learned senior counsel for the plaintiff has vehemently urged that this court was adequately empowered to extend the time to comply with any direction made by the court. In this regard, reliance has been placed on the pronouncement of the Supreme Court reported at AIR 1961 SC 882 Mahanth Ram Das vs. Ganga Das. In this matter, the court was concerned with an order passed by a Bench of the High Court IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 22 of 32 while deciding an appeal in favour of the appellant by a peremptory order premised on deficient court fee. The appellant had made an application for extension of the time before the time which was fixed had run out. However this application came for hearing before the Division Bench after the period which has been fixed had expired. The application was dismissed by the High Court for the reason that the appeal had been already dismissed as the amount was not paid within the time given. In this background, the Supreme Court observed that Sections 148, 149 and 151 clothed the High Court with ample power to do justice to the litigant if sufficient cause was made out for extension of time. The court held that this provision does not clothe the court with the power to exempt payment of court fee. Further the power under Section 149 of the CPC cannot be exercised contrary to the specific mandate contained in the Court Fees Act and Order VII, Rule 11 CPC; that Section 149 is a sort of transitory provision to take care of an interim period.
43. The principles laid down by the Supreme Court bind. However, the same have no application to the instant case inasmuch as this court has not been called upon to consider a prayer for extension of time for complying with an order of the court and no application is before this court for extending the time in complying with the order dated 20 th December, 2002 granting time to the plaintiff to deposit the court fee.
44. Though the plaintiff has referred to the agreement to sell as being dated 6th October, 1996 in the plaint, however, perusal of IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 23 of 32 the documents would show that the agreement to sell is dated 10th June, 1999. The plaintiff has also filed an application under order 6 Rule 17 of the CPC being IA No. 7112/2004 seeking leave to correct the date of the agreement to sell to read as 10th June, 1999 instead of 6th October, 1996 as has been originally mentioned.
45. It has been pointed out by Ms. Mukta Sharma, learned counsel for the defendant, that the statutory limitation of three years for filing a suit for specific performance of the agreement dated 10th June, 1999 expired on or about 10 th June, 2002. The 10th of June, 2002, a Saturday, was the last working day for the registry of the court before the commencement of summer vacations.
46. In this background, the suit was filed on the 6th of July, 2002 on reopening of the court after the summer vacations with deficient court fee, the application under Section 149 of the CPC.
47. In support of the objection, Ms. Mukta Sharma, learned counsel for the defendant has pointed out certain pleadings of the plaintiff in its applications. The court's attention is drawn to IA No. 12010/2002 (under Sections 149 and 151 of the CPC which was dated 6th June, 2002 and accompanied by an affidavit sworn on the same date) whereby the plaintiff sought exemption from affixing the court fee. In para 2 and 3 of this application, the plaintiff had stated as follows:-
"2. That the plaintiff has already applied for obtaining the court fees before the Registry of this court and undertakes to file the same as and when IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 24 of 32 the same is made available to the plaintiff.
3. That due to the urgency in the matter, the plaintiff is filing the present suit without court fees and undertakes to file the same within 3-4 days before this court."
48. So far as the court fee on the plaint is concerned, the plaintiff had originally affixed court fee of only Rs.6/-. Learned senior counsel for the plaintiff urges that the plaintiff only sought leave to make good the deficiency.
49. It is noteworthy that in IA No. 12010/2002 was filed by the plaintiff along with the plaint, it was stated that the plaintiff had already applied for the court fee and an undertaking was given to file the court fee within three or four days of the filing of the suit. This averment was also clearly false inasmuch as court fee has been obtained only on 30th December, 2002. Despite the aforenoticed averments, the plaintiff had failed to obtain the court fee for almost seven months and the above request was made.
50. Learned counsel submits that the 21st of December, 2002 was the last working day of the court before the winter vacations. For this reason, the plaintiff refiled the case on the 19 th of December, 2002 so that it was listed on the 21st, the last date.
As the plaintiff in the instant case had filed the application for condonation of the delay in the plaint being re-presented, the suit came to be listed before the court on the 21 st of December, 2002.
51. It has been noted above, that the plaintiff had made a false averment in IA no.12010/2002 that court fee stood applied for. A IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 25 of 32 contradictory submission was made on 20th December, 2002 before Court.
52. So far as the discretion to grant an opportunity to make good deficiency in court fee is concerned, the same was exercised by this court on the 21 st of December, 2002 when orders were passed on IA No. 12010/2002 and the plaintiff was granted two days time to make good the deficiency.
53. My attention has been drawn to the pronouncement of this court in AIR 2001 Delhi 30 State Bank of India vs. Indian Utility Products & Ors. wherein the court held that if a plaint is returned for removing defects, such as insufficient court fee, non- signing of memo etc. and the said plaint was represented after removal of defects after more than a year of time allowing rectification, a subsequent order to register the plaint by the Registry cannot deprive the right accruing to the defendant under the law of limitation. It was held that the plaint would be deemed to be presented on the date when it was re-presented. In this behalf, placing reliance on the aforenoted pronouncement in AIR (39) 1952 Vindhya Pradesh 12 Sukhnandan Prasad vs. Baburam Maheshwar Lal, in para 11, 12 and 13, this court held as follows :-
"11. Indisputably, the amount of Court-fee initially affixed on the plaint was Rs. 3.50 while the total amount of Court-fee payable on suit amount was Rs. 3,419.30. In between 16th October, 1975 and 15th November, 1976, no application whatsoever was filed by the plaintiff-bank seeking extension of time or rectification of the aforesaid objections. It may be noticed that in terms of the order dated 5th November, 1986 passed in is No. 5119/85 on which great stress was laid on behalf of the plaintiff-bank, said application was disposed of observing that the IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 26 of 32 plaintiff had already made up the Court-fee and, Therefore, the question of condeonation of delay in filing the application in making up the Court-fee, did not arise. This order further notices that the contention advanced on behalf of the defendants that the plaint would be deemed to have been filed when it was refiled for the purpose of limitation was left open. Thus, the limb of argument referred to above in regard to the issue of limitation having been decided in bank's favor by the said order deserves to be repelled being without merit. In my view, by reason of representation of the plaint after more than a year of the time allowed for rectification of objections, a valuable right under the Law of Limitation had accrued to the defendants and mere admission of plaint by the Registrar by the order dated 23rd December, 1976 of which no notice was issued to the defendants, cannot deprive the defendants of that right. In this view of mine, I am supported by the decision in Sukh Nandan Parshad's case AIR 1952 VP 12 (supra).
12. Let me turn to the aforementioned four decisions relied on behalf of the plaintiff. In Mannan Lal's case [1971]1SCR253 , deficiency in Court-fee on memo of appeal was made good in terms of the order of Court within time and in that context it was held by the Supreme Court that though the curing of the defect took place on the date of making good the deficiency, the defect must be treated as remedied from the date of its original institution, In Mahasay Ganesh Prasad Ray's case AIR1953SC431 the High Court in exercise of its discretion had allowed the appellant to amend the memorandum of appeal and granted time for payment of Court-fee under Section 149, CPC and in that background it was held that the other party cannot attack that order on the ground that it took away his valuable rights to plead the bar of limitation as the question of payment of Court-fee was primarily a matter between the Government and the person concerned. In Mahanth Ram Das's case [1961]3SCR763 , it was held that the Court can extend time for payment of deficit Court-fee on an application being made before the time fixed had run out but the application comes up for hearing after the period had run out under Sections 148, 149 and 151, CPC and the order extending time will operate from the date on which the time fixed expired. In the decision in M/s. Maltex Malsters (P) Ltd.'s case AIR1975Delhi123 (supra), the observations particularly made in para No. 11 of the report on IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 27 of 32 page 127 to which may attention was drawn, were made while disposing of the application for condonation of delay in affixing requisite stamp on the order appealed from after the expiry of limitation for filing the appeal.
13. Obviously, said decisions are clearly distinguishable on facts and are of no help of the plaintiff. In my opinion, in the facts and circumstances of the present case, aforesaid defects including deficit in Court-fee pointed out by the Registry cannot be treated as having been remedied from the date of original institution of suit and the plaint would be deemed to have been presented on 15th November, 1976 instead of 26th September, 1975 for the purpose of counting the period of limitation. Admittedly, as on 15th November, 1976, the suit was barred by limitation. Issue is answered against the plaintiff."
(Emphasis supplied)
54. The defendant has staunchly objected to the condonation of the delay in filing the court fee. A reply to the present application taking, inter alia, the above objection premised on limitation, was filed on 24th of January, 2007 by the defendant. It is pointed out that the plaintiff had made a false averment in its application under Section 149 of the CPC. The court had accepted the oral submissions made on behalf of the plaintiff and vide orders dated 20th December, 2002, the plaintiff was given time bound directions to make good the deficiency. In this reply filed by the defendant, a prayer is even made that this court initiate perjury proceedings against the plaintiff for the false pleas urged in IA No.12010/2002 under Section 149 of the CPC.
55. Despite the vehemence of the objections, the plaintiff has not filed any application rendering any explanation for the incorrect statement made in IA No.12010/2002 or for seeking IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 28 of 32 extension of the time for condonation of the delay in making good the deficiency. The plaintiff has not filed even a rejoinder to the reply of the defendant.
56. From the above, it would appear that whether it be 3rd or 9th January, 2003, the plaintiff had failed to comply with the directions made by the court on 20th December, 2002 for depositing the court fee within two days as well.
57. It is trite that this court is adequately empowered to consider and pass appropriate orders even extending the time to comply with court orders or to make good the deficiency in the court fee even though time granted may have expired. However, some explanation for the same must be placed before the court.
58. It is also trite that so far as condonation of delay in refiling is concerned, the same has to be liberally granted so as to advance substantial justice. However, it is well settled that the applicant has to disclose some grounds to enable the court to hold that the delay deserves to be condoned.
59. Before this court, the plaintiff has failed to make good the deficiency in the court fee within the time granted by the court. He suggests no explanation at all for the delay in complying with the court order. No application or prayer for condonation of delay in making good the deficient court fee has been filed or made. In the given facts and in the light of the principle laid down in the above judgments, as on the 3rd of January, 2003 the suit of the plaintiff had become barred by limitation.
60. It may be mentioned that even if the plaintiff was given IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 29 of 32 extension of time and the delay in depositing the court fee was condoned, given the legal principles laid down in the judicial pronouncement noticed above, the institution of the suit would have to relate to the date on which the court fee was deposited on 3rd (or 9th) January, 2002. The above discussion would show that by this date the relief claimed by the plaintiff had become barred by limitation. Looked at from any angle, there is, therefore, substance in the defendants' objection that valuable rights have enured to the defendant and the present application for condonation of delay cannot be considered lightly or allowed as a matter of course.
61. It would be expected that having filed a case involving such a large sum of money, accompanied by the application seeking interim injunction, the plaintiff himself would have made at least a minimal inquiry from his counsel as to the orders passed therein or the fate thereof. Having regard to the nature of the case, any prudent and diligent litigant would be reasonably expected to ascertain the progress in his case. In the instant case, the plaintiff does not even suggest an explanation as to why he himself made no enquiries and took no steps at all in the matter. A period of almost seven months between 10 th June, 2002 and 19th December, 2002 is permitted to pass. There is not even a remotest suggestion that the plaintiff ever inquired from his counsel as to what was the fate of his case after he signed the plaint and the application for interim relief. He does not disclose or explain why he did not enquire as to whether any interim IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 30 of 32 protection was granted on his stay application for this long period. The conduct of the plaintiff would be unreasonable and negligent to say the least. It exhibits sheer arrogance in his belief that attribution of fault to the office of a counsel is sufficient for condoning delays and deficiency, irrespective of the correctness of the reasons put forth to explain the same.
62. At the same time, as noticed above, the explanation tendered for the delay in the refiling is completely unreliable. The same is not supported by the record of the instant case and does not inspire any confidence. No tenable grounds are disclosed by the plaintiff and it has to be held that the explanation given by the plaintiff for the delay in refiling is not bonafide. It is accordingly held that the plaintiff has failed to explain the reasons for the delay which has been occasioned.
63. So far as the prayer in IA No. 12010/2002 for exemption from payment of court fee is concerned, reliance has been placed on the pronouncement of the Division Bench of this court in 68 (1997) DLT 891 Sahara India Airlines vs. R.A. Singh & Anr.
In view of the above discussion, this issue does not need to detain this court any further.
The present application is devoid of merit and is hereby dismissed.
IA No. 12009/2002 (Under Section 38 Rule 5 of the CPC)
64. This application was filed by the plaintiff under Order 38 Rule 5 read with Order 39 Rule 1 and 2 and Section 151 of the Code of Civil Procedure praying for interim orders of injunction IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 31 of 32 and attachment by the plaintiff.
65. An ex-parte ad-interim protection was granted to the plaintiff by this court when the suit was first listed on 20 th December, 2002.
66. It is trite that interim protection would be granted only if the suit was not prohibited by any statutory provisions. In the instant case, it has been held in IA No. 12012/2002 that the suit is barred by limitation. In view of such prohibition by prescription, the present application would not be maintainable and has to be rejected.
This application is consequently dismissed.
(GITA MITTAL)
JULY 21, 2011 JUDGE
aa/kr
IA Nos. 12009 & 12012/2002 in CS(OS) No. 2110/2002 page 32 of 32